Today, Public Knowledge, Electronic Frontier Foundation, and a coalition of consumer and library groups filed a friend of the court brief before the Ninth Circuit Court of Appeals in a case devoted to protecting the first sale doctrine.
In Vernor v. Autodesk, Timothy Vernor bought four copies of AutoCAD software from a design firm that was having an office sale. Vernor then put the disks up for sale on eBay. Autodesk, the publishers of AutoCAD, complained to eBay, claiming that the sale of the software was an infringement of its copyrights getting the listing taken down and eventually getting Vernor kicked off of eBay. Vernor then went to court to have a judge declare that his sale of the software he had bought didn’t infringe Autodesk’s copyrights.
If I were to put my old copy of Harry Potter and the Order of the Phoenix up for auction on eBay, Scholastic, the publisher, would have absolutely no right to tell me otherwise. So what makes Vernor’s case different?
Well, from our perspective, not too much. But Autodesk's software comes along with a fine-print “License Agreement” which, among other things, tells whoever buys it that they haven't actually bought it. As in, the software that you paid money for isn't yours. Instead, the agreement says that you've only bought a license to use the software.
This might at first seem like a pointless bit of semantics. Whether I'm buying the software or buying the right to use it, I'm still paying money and I'm still using software. Except that this software is copyrighted. If I buy something outright, I have the right to sell it to someone else. The same thing is true for copyrighted works—but only because of a particular feature of copyright law: the first sale doctrine.
See, copyright law gives authors the right to prevent others not just from copying their works, but also distributing them. This helps copyright holders sue people who are selling infringing works even if they haven't themselves made the infringing copies. What it doesn't do—and hasn't done, from time immemorial—is keep someone from selling used books, records, or movies. Section 109 says that the owner of any lawfully made copy has the right to distribute it as she likes.
So a lot turns on whether or not you actually own the thing that you want to sell, whether that's software or a book. That makes sense, since it ensures that the individual material objects that contain copyrighted works can be treated just like any other personal property—an owner can freely sell it or use it without trying to navigate some invisible network of legal permissions that have been attached to it.
But if a court simply accepts at face value everything that's crammed into the fine print of a license agreement—something that most people never read, and something that was never negotiated between the parties—then all a copyright holder has to do is include some boilerplate language in that agreement to completely alter the rights of the parties in the relationship. And this isn't just a matter of having a clickthrough contract enforced—by making it a copyright issue, selling a used CD-ROM becomes something that carries with it potential damages of up to $150,000 and even criminal penalties. All for doing something that every eBay or craigslist user does—for doing something that consumers have done ever since books have been sold.
The law exists to protect the rights of authors, consumers, and other users. It doesn't exist so that people can play clever little gotcha games with intricate wording. Believing otherwise allows a mere recitation of some magic words to subvert not just a consumer's expectations, but a fundamental right that we grant to the rightful owners of tangible property.